Pubdate: Wed, 26 Nov 2008 Source: Charleston Daily Mail (WV) Copyright: 2008 Charleston Daily Mail Contact: http://www.dailymail.com/ Details: http://www.mapinc.org/media/76 Author: Ry Rivard Bookmark: http://www.mapinc.org/testing.htm (Drug Testing) LEGAL BATTLE OVER TEACHER DRUG TESTING STARTS TODAY Union Files Suit In Kanawha Circuit Court CHARLESTON, W.Va. -- Kanawha County school board members decided to enter a long legal battle over employee drug testing because of several high-profile drug incidents and their own political calculations, according to interviews with board members who support the policy. The board decided last week to go ahead with its plan to randomly drug test teachers and other school employees despite warnings of a nasty, costly series of legal actions that started today. One teachers union, The American Federation of Teachers-West Virginia, this morning filed a lawsuit in Kanawha Circuit Court calling on the courts to end the board's plan to begin random employee testing in January. The suit seeks a declaratory judgment and injunction to prevent the implementation of the testing plan. Fred Albert, president of AFT-Kanawha, said in a news release after the suit was filed, "The Board left us no choice but to file the suit once they decided to implement a policy that risks student safety and violates the constitutional rights of its employees. The policy violates the constitutionally protected privacy rights of those school employees who will be randomly screened and who are not engaged in safety sensitive positions. The policy, in effect, places all teachers under suspicion; and this is both morally and legally wrong." Because of the cost of the impending legal battle, board members may be less willing to raise teacher salaries and increase employee benefits. The decision to continue with their testing plan, which some board members hope could change legal thinking around the country, began as a result of the "long and tortured history of drug problems in our schools" according to board member Pete Thaw. Voters But some of the votes for the policy also came from community pressure, despite little evidence that there is a high level of drug use among employees. The board was also warned that the school system could be out several hundred thousand dollars in legal fees for a plan that will be struck down by the courts. Board member Jim Crawford went from opposing the policy because he thought it was unconstitutional to supporting it because of what he heard from his supporters. "A lot of my friends who supported me both verbally and financially said I would have probably have gotten more votes had I supported drug testing," he said. All four board members who support the policy cited community pressure to test random test all teachers. After the board took its first go at teacher drug testing by approving a suspicion-based test, the community wanted more. That plan allowed the county to test teachers that administrators suspected of being on drugs or having an ongoing drug problem. It also allowed the school system to test employees who were hired or sought transfers. But board members were inundated with phone calls, said board member Bill Raglin. He said the public had spoken very loudly that they want a random drug test for everyone. "As a board member elected by the public, with the constituents I could not find any reason why I should not at least respond to the will of the people to pursue something I was not totally convinced had been eliminated as totally unconstitutional," he said. Legal warnings had little or no effect on Raglin. "I'm not going to go against the ruling of the courts, but I want to hear what the courts have to say," he said. "And I'm not willing to accept what I am told by the ACLU lawyer or anyone else because it's an opinion they have - it's not a court ruling." Only one of the five board members did not support the policy. Robin Rector has publicly changed her mind on the policy, which she once supported. She voted against the policy in October saying it did not treat teachers as professionals, would damage their morale and could invite lawsuits. Consequences The first lawsuit will be filed today in Kanawha County circuit court by the West Virginia chapter of the American Federation of Teachers. In the courtroom, the school system's drug policy faces challenges on two fronts. The board was told last week that it "will lose" in state court and that, in federal court, the plan is "flatly unconstitutional" by lawyers brought in by AFT-WV. Crawford and Thaw both think that the organizations fighting testing are doing it without the support of many teachers. "The teachers aren't fighting it; the teachers unions are fighting it," Thaw said. He added, "I don't think their unions are representing their point of view at all." Crawford thinks the organizations oppose the policy primarily to boost their membership by showing teachers they are out there fighting a battle. "If they take us to court and they win, then they can say, 'We fought the drug testing,'" he said. The union disagrees. "We are taking a stand that says this is unconstitutional. That we have very few rights left," said Fred Albert, president of the Kanawha County AFT chapter. "That we are not all guilty and have to prove ourselves innocent." Albert says that the money - several hundred thousand dollars for a protracted court battle and around $40,000 a year for the drug testing if the policy goes forward - could be better spent in the classroom. He suggests it be used to reduce the student drop out rate. But moves by the organizations may end up hurting the chances that their members will get raises and benefits. Last week's board meeting featured a lawyer brought in by the AFT warning the board that their plan will provoke a "nasty, costly" legal battle. Afterward, Dinah Adkins, president of the Kanawha County Education Association, asked for improvements to the school system's medical plan. Thaw found this a galling move. "I don't think rational people would do that," Thaw said. "I don't think you ask for a pay raise and/or an increase in benefits at the same time you're in court fighting drug testing." He added, "It really shows the public what a total disregard they have for the taxpayer: 'I don't want drug testing, but I want more money.'" Board president Becky Jordon has a similar take. "What is the unions' big deal that they want to spend this kind of money?" she said of the lawsuit. "If they want raises, then don't break our bank on legal fees." Incidents There is no evidence that county teachers and school personnel use drugs more often or more commonly than other populations, but several high profile incidents - some unproven - stirred up voters, board members say. Superintendent Ron Duerring said he thought some recent incidents led board members in the direction of the random drug testing policy. Duerring refused to categorized whether or not there was a "a problem" with drugs among school employees because, he said, "For some people one (incident) would be one too many." The voting board members cite three incidents: * The allegations that a librarian at Hayes Middle School in St. Albans had a relationship with two male students, which included alleged drug use and in-home visits. * The arrest of a Pratt Elementary principle after police said they found cocaine in his back pocket. He was found not guilty of knowingly possessing cocaine. * The arrest of a popular J.E. Robins Elementary teacher after police found materials to make methamphetamine scattered throughout his East End house. The president of the WVEA, Dale Lee, says the high profile incidents are not representative of the teacher population. He believes teachers are more likely to be Sunday school teachers and community volunteers. "It would a very, very, very small percentage of people who may have a problem, and it is certainly a much smaller percentage in the teaching profession than in average society," he said. Lee called the board's policy drastic and costly. Board members argue that teachers - like nuclear power plant engineers, police officers and mass transportation employees, including school bus drives - have "safety sensitive" jobs because catastrophic incidents can occur on their watch. Drug testing is meant to prevent these incidents. Board members say that other professions have long tested employees for drugs. Some organizations, including building contractors, publicly advertise that their employees are drug free. "I guess there's nothing more safety sensitive than someone who has my child all day long," said school board president and mother Becky Jordon. Raglin said statistics show that a significant number of people in all professions are involved in substance abuse and he doesn't know why teachers would be any different. "I don't know how we could say one group of people are able to avoid that which everybody else is afflicted with," he said. Raglin said it was the incident with the Pratt principle that sold him on random drug testing. Besides teachers and most service personnel, board members have also voted to test themselves and other school administrators, including the superintendent. Thaw wonders why teachers have a problem with the policy when employees in other professions don't - and he wonders if the courts will have the same problems. He said he doesn't think the board is trying to trample on people's constitutional rights if it's trying to have a safe workplace and a safe place for children to come to school. "If that's trampling on constitutional rights, then there's something wrong in this country," Thaw said. - --- MAP posted-by: Larry Seguin